Opinion
2012-03-13
Herman FLEISCHMAN, etc., Plaintiff–Respondent, v. NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION, Defendant–Appellant.
Drinker Biddle & Reath LLP, New York (Stephen R. Harris of counsel), for appellant. Lipsius–BenHaim Law, LLP, Kew Gardens (Ira S. Lipsius of counsel), for respondent.
Drinker Biddle & Reath LLP, New York (Stephen R. Harris of counsel), for appellant. Lipsius–BenHaim Law, LLP, Kew Gardens (Ira S. Lipsius of counsel), for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 19, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
*854 The motion, which was based on the theory of accord and satisfaction, was properly denied since defendant failed to show that there was a “clear manifestation of intent by the parties that the payment was made, and accepted, in full satisfaction of the claim” ( Nationwide Registry & Sec. v. B & R Consultants, 4 A.D.3d 298, 300, 773 N.Y.S.2d 341 [2004]; see Manley v. Pandick Press, 72 A.D.2d 452, 424 N.Y.S.2d 902 [1980], appeal dismissed 49 N.Y.2d 981, 428 N.Y.S.2d 950, 406 N.E.2d 805 [1980] ). Here, there was nothing on the refund check or in the letter enclosing the check that indicated that the check was tendered only on the condition that it was in full payment of the disputed claim ( see Nadel v. Manhattan Life Ins. Co., 211 A.D.2d 900, 902, 621 N.Y.S.2d 180 [1995]; compare Sarbin v. Southwest Media Corp., 179 A.D.2d 567, 578 N.Y.S.2d 571 [1992] ).